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Migration Visas and Work Rights Including Workers Compensation

Synopsis and Introduction

This article explores the relationship between personal injury claims brought in New South Wales by injured workers and the effect of the Migration Act 1958 (Cwth) on such claims. Federal migration law makes it a criminal offence for a person to work where that law prohibits work by a non-citizen in Australia and also a crime for an employer to allow such workers through knowing or being reckless to the fact that the migration status of an employee prevented the work being done.

It concludes that in NSW at least non-citizen workers who commit a crime by working when their migration status forbids it, will still be able to pursue personal injury claims, including claims for workers compensation. However other jurisdictions have taken a different view of the effect of working in breach of the Migration Act. In NSW, it seems, further federal amendment of the Migration Act will be needed to prevent claims by workers.

Despite this, the practical difficulties for injured workers working when they did not have migration rights to do so to recover compensation for their injuries, are considerable. The very act of such a worker working is unlawful and migration law imposes heavy penalties on the non citizen: a significant fine, the necessity to stop and detain a non citizen if apprehended and usually to deport the person as soon as practicable. The migration status of an injured worker must be a key inquiry at the outset of considering whether to act for such a worker. The fact that such a worker is pursuing a civil claim for compensation for his or her injury will never be a basis for allowing the person liable for deportation, to remain in Australia during the claim period.

Background to the Issues

Taylor and Scott has not infrequently been instructed to act on behalf of clients to recover entitlements to workers compensation or damages for personal injury following injuries at work where the clients’ legal entitlement to perform the work is subject to their visa status under the Migration Act 1958. This article will discuss three circumstances, all of which have been encountered by the firm and its clients from time to time:

1. A person who is a non-citizen has been performing work at a time when he or she had no rights to perform any work because of his/her migration status. Examples of this include where a worker is present in Australia on a substantive visa (for example a visitor’s visa) where the visa condition 8101 is imposed (no work) or is present in Australia on a bridging visa where, again, the conditions of that visa include Condition 8101 (no work). If you check the visa label in a client’s passport it will normally show the Condition 8101 on it; for example a bridging E visa (Subclass 050) almost never has work rights allowed and even some bridging visas normally permitting work rights may have a no work condition attached. A third situation that we are all familiar with is where a person has entered Australia on a visa that has long since expired but is now living “underground” as an unlawful non-citizen with, of course, no work rights, but who in fact works in order to survive underground.

2. Non-citizens may have visas with work rights attached but with restrictions and conditions upon those work rights. The two most common examples are persons on student visas under which both they and their family members also in Australia on “secondary” student visas are subject to Conditions 8105 for the student and Condition 8104 for the family members in Australia. Condition 8105 does not allow the visa holder to engage in any work in Australia before the course of study commences, and when it does, not engage in work in Australia for more than 20 hours a week during any week when the course of study “is in session”. The secondary family members’ restrictions under Condition 8104 are essentially the same as the primary visa holders under Condition 8105. The second common example is a person on a temporary employer-sponsored Subclass 457 visa. All such visas carry Condition 8107 under which the visa holder is only allowed to work full-time for the employer who nominated him or her and only in the specific occupation for which he or she is nominated. A person holding a Subclass 457 visa working for another employer or on his or her own account, or even for the nominating employer but in a different job is in breach of his or her visa condition.

3. There are other cases where an employee had unrestricted work rights at the time a work injury occurred and so was not in breach of any visa conditions but who subsequently had changed visa conditions permitting no work at all. Those persons who were injured while working “legally” may subsequently be either fully incapacitated or partially incapacitated for work, e.g. fit for light duties only. Whilst incapacitated for work, in cases like this the visa conditions will have changed permitting no work anyway, even if the person had been able to work.

Relevant Provisions in the Migration Act 1958

(a) Section 235 of the Migration Act 1958 (“the Act”) now puts it beyond any doubt that it is a criminal offence for non-citizens to perform work in Australia when they are not entitled to work at all or if they break the conditions under which they are entitled to work. Section 235(1) deals with persons who hold temporary visas (that is, they are called “lawful non-citizens”) and that to contravene a condition on their visa is to commit an offence against the Section. Section 235(2) notes that the conditions may be to prohibit a non-citizen doing any work, work other than specified work or specified work. Section 235(3) also makes it an offence for a person without any visa at all (an “unlawful non-citizen”) to perform work in Australia. The word “work” is given a very wide definition: the Migration Regulations define it as “an activity that, in Australia, normally attracts remuneration” and Section 235(3) prohibits any work by unlawful non-citizens “whether for reward or otherwise”.

The offences under Section 235 are offences of strict liability (as defined in 6.1 of the Commonwealth Criminal Code). There is a fine attached to breach of the Section of up to $10,000.

(b) From August 2007 there have been provisions creating serious offences for conduct allowing non-citizens to work or against persons who refer non-citizens for work. These are Sections 245AA – 245AK of the Act. Under Section 245AB it is a serious offence for a person to allow, or continue to allow, a worker who is an unlawful non-citizen to work where that person knows, or is reckless as to whether the worker is an unlawful non-citizen. Depending on the circumstances, the offence carries terms of imprisonment for up to two years or five years. Section 245AC similarly makes it an offence to allow a worker to work where the person knows of, or is reckless as to the existence of, the visa condition and knows that the worker is in breach of the condition or is reckless to it. Once again work is defined as being “whether for reward or otherwise”. The most common situation of “allowing” a person to work is where an employer employs the worker.

Is a Non-Citizen performing Work illegally under a contract that is itself illegal, void or unenforceable?

There is no longer any doubt that a non-citizen working in Australia in breach of Section 235 is committing a criminal offence and equally that under Sections 245AA and following other parties such as employers allowing such work may also be committing a criminal offence. However, that does not of itself mean that a contract of employment under which a non-citizen works illegally is, because of that fact, an unlawful contract giving no rights of enforcement to the parties to it. For workers compensation and personal injury practitioners, the relevant issue is whether a person, who works under a contract of employment when it is illegal for that person to work under Migration Law, is restricted in his or her rights to claim workers compensation or damages for personal injury.

The Case Law: The Special Position in New South Wales

Section 235 of the Migration Act does not in terms make the contract of employment under which work is performed in breach of that Section to be an illegal or unenforceable contract, even though the act of working is illegal. The approach of the Courts in Australia to the issue of whether the provisions in the Migration Act making work by unlawful non citizens or in breach of visa conditions to be a criminal offence is not consistent.

For example, in 2006 a Federal Court judge concluded that the mere fact that a person was committing an offence under Section 235 of the Migration Act meant “that the contract or arrangement which he had … was void for illegality and unenforceable”. Similarly the South Australian Full Court in 1994 took the same view and concluded that an injured worker working in breach of Section 235 of the Migration Act was not entitled to recover workers compensation in that State.

On the other hand, the New South Wales courts have taken a different view. It has been concluded that even where the performance of work is illegal because of the Migration Act, an injured worker is entitled to receive workers compensation payments for the injury. The New South Wales Court of Appeal has upheld that view on two grounds. Firstly, it has applied a general principle of the common law to circumstances where a worker is injured while working illegally. The principle is that the mere illegality does not prevent some rights arising under the contract, such as claims for personal injury, being enforceable. It is said that the policy and social undesirability of preventing action by workers (or their employers for that matter) outweigh any policy reasons for not giving any effect to a contract of employment where the performance of the work involves an unlawful act.

Secondly, Section 24 of the Workers Compensation Act 1987 allows recovery of workers compensation even where “the contract of service or training contract under which the injured person was engaged at the time when the injury happened was illegal”. Thus the policy position of the New South Wales Parliament that workers compensation rights should be available even where the work is performed under an illegal contract, gives a discretion to uphold workers compensation rights in these circumstances.

Conclusion

It seems that in New South Wales at least, an injured worker may recover compensation under the Workers Compensation Act 1987 even where the worker’s migration status made that act of working illegal and where the employer’s action in allowing the work was also illegal. Section 24 of the current Workers Compensation Act would seem to produce that result even if the contract of employment itself is held to be an unlawful contract. However the prevailing view in NSW seems to be that even absent S.24 the worker working in breach of S.235 of the Migration Act could bring claims arising out of work personal injury because the employment contract itself would not be held to prevent claims for legal or equitable rights being brought where those rights arose out of that contract.

LACHLAN RICHES (Migration Lawyer and Migration Agent Registered No. 9473887)

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